Bagel Bag as Bellwether? Appropriation Art Under the Canadian Copyright and Trade-marks Acts

Abstract:

On the 100th anniversary of Marcel Duchamp’s “Fountain” and in response to developments on the artistic, judicial and legislative fronts, this article revisits the legality of artistic practices of reference and quotation. While Canadian visual artists have recently begun to incorporate trademarked logos into their works, there is a real possibility that corporate trademark holders may exploit intellectual property law to restrict the use of their marks by second-generation creators. This article assesses hypothetical litigation instituted by a corporate trademark holder against an appropriation artist, and concludes that there is breathing space for new forms of visual artistic production under the Copyright Act and the Trade-marks Act. Given their built-in balance between expressive interests and those of copyright and trademark holders, these statutes can weather the new challenge posed by contemporary appropriation art.